Citation Nr: 1124439
Decision Date: 06/28/11 Archive Date: 07/06/11
DOCKET NO. 10-36 606 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire
THE ISSUE
Entitlement to service connection for a bilateral hallux valgus deformity of the feet.
ATTORNEY FOR THE BOARD
Carole Kammel, Counsel
INTRODUCTION
The Veteran had active military service from August 1999 to March 2003.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision of the Department of Veterans Affairs Regional Office (RO) in Manchester, New Hampshire. By that rating decision, the RO, in part, denied service connection for bilateral hallux valgus and bunions of the greater toes. The Veteran appealed the RO's September 2009 rating action to the Board.
FINDINGS OF FACT
1. Moderate bilateral hallux valgus of the feet was identified on the Veteran's service entrance examination report.
2. The Veteran underwent ameliorative surgeries (i.e., closing base wedge osteotomy with modified McBride bunionectomy of the left foot and a modified Austin bunionectomy of the right foot) for bunions of the left and right feet during active military service.
3. The Veteran's preexisting moderate bilateral hallux valgus was not permanently aggravated during military service.
CONCLUSION OF LAW
The Veteran does not have a bilateral hallux valgus deformity of the feet that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1111, 1137, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Assist and Notify
The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).
Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The claimant should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide.
Proper notification must also invite the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). See also Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120- 21 (2004). In Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the Federal Circuit held that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents (e.g., statements or supplemental statements of the case), was required.
The Federal Circuit further held that such a letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. Id.
VCAA is not applicable, however, where further assistance would not aid the Veteran in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5- 2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).
In an October 2008 pre-adjudication letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claim for service connection for bilateral hallux valgus.
The RO also specified what information and evidence must be submitted by her, what information and evidence will be obtained by VA, and the need for her to advise VA of or submit any further evidence that pertains to the above-cited service connection claim.
The notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).
VA, however, may proceed with adjudication of a claim if errors in the timing or content of the VCAA notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Pelegrini, 18 Vet. App. at 121; Sanders v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Simmons v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007).
Here, via the above-cited October 2008 letter, notice was provided to the Veteran prior to the appealed September 2009 rating action. Id.
In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim (those five elements include: Veteran status, existence of a disability, connection between the Veteran's service and that disability, degree of disability, and effective date pertaining to the disability). In this case, via an October 2008 letter, the RO informed the Veteran of the Dingess elements with respect to the claim for service connection for a bilateral hallux valgus deformity of the feet.
The RO has taken appropriate action to comply with the duty to assist the Veteran with the development of the above-cited service connection claim. The Veteran's service treatment records (STRs) and VA examination reports are of record. In June 2009, VA provided the Veteran with an examination and opinion as to the etiology of her bilateral hallux valgus deformity. A copy of the June 2009 VA examination report is of record.
Accordingly, the Board finds that no prejudice to the Veteran will result from an adjudication of this appeal in the decision below. Rather, remanding this case for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).
II. Laws and Regulations
The Veteran contends that her preexisting bilateral foot disability, moderate hallux valgus, underwent permanent aggravation during her period of active military service.
Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a claimant must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the disease or injury existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1137.
A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The presumption of aggravation may be rebutted only by clear and unmistakable evidence. 38 C.F.R. § 3.306(b).
In July 2003, VA's General Counsel issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. This holding replaced the previous standard under 38 C.F.R. § 3.304(b), which had required that if a condition was not noted at entry but was shown by clear and unmistakable evidence to have existed prior to entry, the burden then shifted to the claimant to show that the condition increased in severity during service.
If, on the other hand, a condition is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but he may bring a claim for service- connected aggravation of that disability. In that case, § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).
Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995).
Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).
In addition, the usual effects of medical and surgical treatment in service, provided to ameliorate a preexisting condition, will not be considered service connected unless the disorder is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1); Verdon v. Brown, 8 Vet. App. 529, 538 (1996)(a "lasting worsening of the condition" or a worsening that existed not only at the time of separation but one that still exists currently is required.) Accordingly, "a lasting worsening of the condition" -- that is, a worsening that existed not only at the time of separation but one that still exists currently is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997);
III. Merits Analysis
The Board finds that because the preponderance of the competent and probative evidence of record is against a finding that the Veteran's preexisting bilateral hallux valgus deformity was permanently aggravated by her period of active military service, the claim must be denied. The Veteran's STRs show that upon entrance into service in March 1999, the examiner made findings that her feet were abnormal, noting a condition of "Mod" hallux valgus, which was considered asymptomatic. (See March 1999 service enlistment examination report). The Board accepts the above-cited service enlistment examination as probative evidence that the Veteran's bilateral hallux valgus preexisted service. The question remains whether or not the Veteran's pre-service bilateral hallux valgus was permanently aggravated by service.
The Board finds that, irrespective of the Veteran's own statements, the evidence of record clearly and unmistakable shows that her preexisting bilateral hallux valgus was not permanently (italics added for emphasis) aggravated by military service.
In reaching the foregoing determination, the Board must rely most heavily on the contemporaneous medical records of that time. A June 2000 memorandum, prepared by the Commander of the Second Military Police Company at Camp Casey, Korea, reflects that the Veteran had a foot deformity that had been aggravated by her wearing boots that were too small. The Veteran was issued replacement boots that were one size larger than her previous pair. After complaints of left foot bunion pain, the Veteran's underwent a closing base wedge osteotomy with modified McBride bunionectomy of the left foot in December 2000. After the surgery, the Veteran was placed on a limited profile and was instructed not to jump or stand for more than 25 minutes. In June 2001, the Veteran complained of right foot bunion pain. At that time, she indicated that she did not have any problems with her left foot. Assessment of moderate bunion deformity of the right foot and status-post bunionectomy [in] December 2000, left foot, asymptomatic were entered.
In June 2001, the Veteran underwent a modified Austin bunionectomy of the right foot. At that time, the Veteran stated that she did not have any left foot problems. In July 2001, the Veteran complained of occasional stabbing pains in the first metatarsalphalangeal joint of her right foot. August 2001 X-ray interpretations of the right foot revealed a bunionectomy and osteotomy of the first metatarsal; the osteotomy was well healed. A metallic screw was in the site of the osteotomy. In late August 2001, the Veteran was placed on a profile that involved no running, jumping, or marching, and walking was to be at her own pace and tolerance. She was issued a surgical shoe, soft shoe and high-tech boot that were to be used on as needed basis for 30 days. A follow-up profile was established for late September 2001 for running, jumping and marching at her own pace and tolerance for a four (4) week period.
In October 2002, the Veteran complained of right foot pain that had been present for the previous two (2) months. She requested that the screws be removed from her right foot. The Veteran was instructed that a lot of her symptoms might have been the result of the rocky terrain that she had experienced while serving in Afghanistan. She was given a profile of running, jumping and marching at her own pace for two (2) weeks along with a Spence insole bilateral. A February 2003 service discharge examination report reflects that the Veteran's feet were evaluated as "normal." On an accompanying Report of Medical History, the Veteran reported that she had had foot trouble and that she had plate(s), screw(s), rod(s) or pin(s) in a bone (i.e., bunion surgery on both feet that involved the insertion of pins in her toes).
The above-cited evidence of records demonstrates that aggravation of the Veteran's bilateral hallux valgus deformity did not occur, but that she underwent two separate surgical procedures with the intent of having the effect of ameliorating her pre-existing bilateral hallux valgus deformity of the feet. As such, it cannot be considered service connected unless the condition was otherwise aggravated by service. See 38 C.F.R. § 3.306(b)(1). The Veteran agreed to have the above-cited surgeries performed during active military service. Afterwards, she was placed on temporary, not permanent profiles.
Another important document is the report of the Veteran's February 2003 examination prior to separation from service. This record does not show that the Veteran had a moderate hallux valgus deformity. In fact, this same report showed that the Veteran's feet were evaluated as "normal." This is objective evidence indicating that a hallux valgus deformity was not so severe at separation as to be reported on examination. Thus, this finding indicates that the condition actually improved from the moderate hallux valgus deformity that was noted at service entrance in 1999.
Also weighing against a finding that the Veteran had a hallux valgus deformity at separation from service is the fact that the first initial complaints of, or treatment for, this disability after service was not until she was examined by VA in 2009, six years after service discharge in March 2003. This evidence weighs heavily against a finding that the Veteran's bilateral hallux valgus was aggravated during military service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that aggravation in service may be rebutted by the absence of medical treatment for the claimed condition for many years after service).
In fact, when VA examined the Veteran in September 2009, the examiner concluded, after a review of the claims files, to specifically include the above-cited STRs and clinical examination of the Veteran's feet, that the Veteran's prior hallux valgus and bunions of the greater toes of both feet and been treated surgically with good results. The examiner indicated that the Veteran only had mild (italics added for emphasis) residuals symptoms (i.e., pain with prolonged standing), as opposed to the moderate hallux valgus deformity that was present at service entrance in March 1999. This evidence illustrates that the Veteran's bunionectomies during military service were performed to ameliorate a condition that had existed prior to her period of military service and that she completely recovered from the procedure with only mild residuals effects.
IV. Conclusion
The Veteran is competent to provide statements concerning factual matters of which she has firsthand knowledge (i.e., experiencing pain in her feet). See Barr v. Nicholson, 21 Vet. App. 303 (2007); Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
The Veteran's contention that her preexisting bilateral hallux valgus deformity underwent permanent aggravation during her period of military service is not competent medical evidence to support an award of service connection. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). The Veteran has not shown, nor claimed, that she possesses the medical expertise that is required to render a competent opinion as to actual diagnoses and/or medical causation. See Barr, supra; Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (finding Veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise).
In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
Service connection for a bilateral hallux valgus deformity is denied.
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MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs